SA must establish a clear separation of powers between the executive and parliament

Mail & Guardian

09-05-2025

The government of national unity formed after the ANC lost its outright parliament majority in May 2024 general elections. Photo: @PresidencyZA/X
It is said that every cloud has a silver lining. With this in mind, the budget impasse raises policy issues that may need to be reviewed, particularly the lessons learnt in the past 31 years of South Africa's democracy.
At an outset, one must stress the importance of a cohesive cabinet that presides over the implementation of legislation and transformative policies if the country harbours the idea of development geared towards sustainable human dignity as enshrined in the Constitution.
The fluidity of the coalition government, euphemistically called the government of national unity, has exposed its shaky foundation given the differing ideological positions of its constituent members. These differences, especially on the necessity of redress and redistribution, are high risks that impede the functionality of the cabinet as a cohesive unit. It is a matter of common cause that the approval of the budget was the subject of a parliamentary vote, with a narrow majority voting in favour. The budget is not an end in itself; it is the means to support the implementation of legislation, policies, programmes and projects.
The Democratic Alliance (DA) did not support the vote. While this is understandable from a party politics point of view, it creates problems for the cohesiveness of the structure entrusted with the task of coordinating development, particularly for the vast majority of people who depend on public services. Is there a point in remaining a member of cabinet when you openly do not support its decisions? Can a developing country such as ours afford to have cabinet members who are opposed to its work? Unfortunately, the precarity of the position of the incumbent president makes it impossible for him to reign in what would ordinarily be deviant conduct.
These developments necessitate the need for deeper reflection on some provisions of the Constitution. Almost three decades since the adoption of the Constitution on 8 May 1996, the persistence of stubborn challenges that deprive many of their right to improved dignity of life justifies the review of some sections or provisions. For instance, in terms of section 91(3)(b) of the Constitution, the president 'may select any number of ministers from among the members of the assembly'. MPs who are appointed as ministers are not expected to resign their positions in the National Assembly. This creates a quandary in relation to section 80 of the Constitution, which empowers members of the National Assembly to litigate all or parts of an Act of parliament that they may deem unconstitutional.
While the budget impasse may not exactly be about the invocation of section 80, the potentiality of ministers, in their capacity as MPs (and openly exploiting the sectarian party interests), negating positions of the executive is real. As observed earlier, this may be exacerbated by the inability of the president to discipline members of his executive for the very members may go back to the National Assembly to either initiate or support the motion of no confidence against the president. The precarity of the government betrays claims of national unity. At best, the government is essentially a confederation of political parties that bitterly fought for a seat at the table.
The DA, whose leader is a member of cabinet, thus individually and as part of the collective accountable to parliament, has led court actions on the Employment Equity Act, the Basic Education Amendment Act, the Expropriation Act and the VAT hike. Even though laws remain enforceable until either rescinded or reviewed by the body that approved them or successfully challenged in courts of law, the recourse to courts by the DA effectively means its members in the executive will defy orders to implement approved legislation. What happens when ministers are expected to implement legislation in terms of section 92(2) of the Constitution but elect to exercise their constitutional right as MPs provided in section 80 of the Constitution to challenge what they consider to be constitutional flaws.
Even though the Constitution promotes the doctrine of separation of powers between the executive, the parliament and the judiciary, which is aimed at encouraging checks and balances, the fact that ministers continue to serve as members of the national assembly and enjoy certain privileges in that capacity, including the right enshrined in section 80 of the Constitution, effectively undermines the separation of powers.
As a developing country characterised by poverty and exclusion of the vulnerable who should be the main motive forces of democracy, South Africa cannot afford a dysfunctional, incoherent cabinet. That exacerbates what seems to be the intractable coordination malaise between the three spheres of government, and between adjoining provinces and municipalities. Various reports from the National Planning Commission paint a bleak picture of the negative effect of this incoherence, particularly on efforts aimed at spatial transformation.
The sobering question the nation needs to grapple with is the emergence of a strong case to review the Constitution to create a climate of perfect separation of powers mainly between the executive and parliament.
Dr Matheakuena Mohale is the public policy specialist based at Durban University of Technology. He writes in his personal capacity.